The Utah Attorney General's office filed a notice of appeal Thursday and hopes to bring a West Jordan man - was once charged with murder - back to court to stand trial.

Donald C. Jaeger, 32, was charged with second-degree murder for the shooting death of his live-in girl-friend, Mary L. Barndt, on Aug. 22. But early last month, a 3rd Circuit judge dismissed the case against him and said there was not enough evidence to prove the woman didn't commit suicide, as Jaeger claims.Third Circuit Judge Michael Hutchings said the preliminary hearing was one of the most difficult ones he has tried but said he believes no reasonable jury could find Jaeger guilty of second-degree murder. Instead of binding the case over to district court, he ordered the West Jordan man discharged.

"We disagree with his decision that there was not probable cause" to bind Jaeger over, said David Thompson, division chief for criminal appeals in the attorney general's office.

Thompson said the Utah Supreme Court will now decide whether to overturn the judge's decision and order Jaeger to stand trial in district court.

"Some judges want to make preliminary hearings into minitrials. That's not what they're designed for," said Bud Ellett, chief of the justice division of the Salt Lake County Attorney's office. "We think it's something that needs to be addressed."

Prosecutors contend Jaeger shot Barndt at his West Jordan home during an argument. That evening he discovered she had been making unauthorized long-distance calls and she had left her daughter unsupervised at home while she went to a bar that evening. Jaeger told her she would have to move out the next day.

Jaeger says Barndt, 19, shot herself just below the neck and Hutch-ings said there was ample motive for her to commit suicide. She was distraught because their relationship was over and she was ordered to leave. Barndt's mother testified that her daughter called her that evening and was very upset.

Later, when the mother was informed that Barndt had died, her first comment was to ask if her daughter had killed herself. "The combination of these emotions and chemicals (alcohol and Valium) could very well have prompted Mary to take her own life," the judge wrote.

An assistant state medical examiner ruled that the death was a homicide and said he did not believe Barndt could have killed herself. But the judge felt the crux of the case for both sides hinged on the results of gunshot residue tests.

Barndt's hands showed no signs of residue indicating she had fired a gun. Jaeger's hands, however, showed particles characteristic of gunshot residue. Defense attorneys argued that Jaeger works at an automotive business - an environment containing elements characteristic of gunshot residue. The judge agreed that such particles could have affected the test.

Hutchings ruled that the residue could have been rubbed off of Barndt's hands while paramedics treated and transported her to the hospital. A 911 dispatcher also told Jaeger to hold the victim's hand until paramedics arrived and that action could have transferred some of the residue, he said.

Briefings for the appeal are expected to be filed in the next few months.